Enforcing Virginia text ban might be complicated

(Rob Ostermaier, Daily Press…)

March 02, 2013|By Austin Bogues, abogues@dailypress.com | 247-4536

Gov. Bob McDonnell is currently reviewing a bill that would make texting while driving a primary offense, meaning law enforcement could pull drivers over if they suspect they've been messaging on their cell phones on the road.

Law enforcement and safety advocates agree that texting while driving is among the most dangerous activities motorists can engage in. "It can be as dangerous as driving intoxicated," Sgt. Jason Price, a spokesman for Hampton police, said bluntly.

Enforcement might pose legal questions that even proponents of the bill say courts will need to decide — such as do you have to hand over your phone to a cop if he asks to see it?

"It does raise this issue," said Hampton attorney Ron Smith. "The officer sees you typing into your phone. How does he know you're not typing in a number as opposed to texting? Once he stops you, does he have the right to search your phone to see if in fact you were texting?"

Right now, texting while driving is illegal in Virginia, but law enforcement officers cannot use that as a reason to stop motorists.

Currently, the law doesn't appear to be widely enforced. In Newport News, for example, there were only 22 citations written for texting while driving in the past year, while there were only 511 such charges statewide.

Aside from making texting while driving a primary offense, the new legislation would also increase fines for texting while driving. For the first offense, fines would be $250 rather than the current $25. For the second and later offenses, the fines would be $500.

The bill, sponsored by Del. Richard Anderson, R-Woodbridge, passed the House 92-4 month and passed the Senate 28-12 last month.

The proposed changes, which would go into effect July 1, if McDonnell signs the bill into law, would allow police to pull drivers over if they suspect they're reading or sending text messages or email. But it would remain legal to make a phone call in a car while driving.

The ACLU of Virginia has said the new legislation may lead to difficult situations proving whether or not a driver has, in fact, violated the law.

"Our concerns would be that police officers are adequately trained to know what they can do or what they can't do," said Claire Guthrie Gastanaga, executive director of the ACLU of Virginia. "If you're not placed under arrest, we believe they would have to have a warrant to seize your cell phone or look into it."

Dana Schrad, Executive Director of the Virginia Association of Chiefs of Police, said it's unlikely police will spend a lot of time peering into moving vehicles to see if the driver is text messaging.

"Unless you're real close to them, you can't really see all that activity," she said. "What's going to draw their attention is the kind of activity that creates a hazard in traffic — swerving, driving too slow in traffic — then you might notice texting activity. What this allows [police] to do is it gives them a better opportunity to cite someone for texting while driving."

Schrad said one of the main benefits of the law would be people voluntarily changing their behavior.

"People want to obey the law," Schrad said. "We're hopeful people will be more diligent about being law compliant."

But some defense attorneys who take on traffic cases said a new texting law could allow for potential abuses.

Smith said he's concerned that it would give police too much leeway to stop motorists, perhaps as a pretext to find other violations. "It's just another layer that adds so much discretion to the police to stop motorists," Smith said.

Edward Sarfan, a defense lawyer in Newport News, said police in some instances may ask motorists to voluntarily let them inspect their phones.

"They can always ask," he said. "The question is if you say no, do they have the right to do it or do they need to get a search warrant?"

Sarfan, Smith and Schrad said it may be up to the courts to make a final determination.

"It's something that will end up being a case-by-case decision in court," said Schrad. "We can't tell at what point an officer would be able to compel someone to turn their phone over. There are privacy concerns. It may end up being something where maybe they subpoena the phone record if they need to determine that…We want a balanced approach to how law enforcement will be able to use that."

Gov. McDonnell has not yet said publicly if he'll sign the bill into law.

"The governor has said similar things about the ability for law enforcement officers to discern what types of activities a driver is participating in on his [or] her cell phone," said Jeff Caldwell, a spokesman for McDonnell. "He has said publicly that he believes the blanket reckless driving statutes already in place cover a wide range of possible activities. That being said, he will review the bill."